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Law School Case Brief

Schwab v. Timmons - 224 Wis. 2d 27, 589 N.W.2d 1 (1999)


An easement by implication arises when there has been a separation of title, a use before separation took place which continued so long and was so obvious or manifest as to show that it was meant to be permanent, and it must appear that the easement is necessary to the beneficial enjoyment of the land granted or retained. Implied easements may only be created when the necessity for the easement is so clear and absolute that without the easement the grantee cannot enjoy the use of the property granted to him for the purposes to which similar property is customarily devoted.


Petitioner landowners brought a declaratory judgment action against respondent landowners for a determination that petitioners were entitled to an easement by necessity or implication for both ingress and egress and utilities over the properties owned by the respondents so that they could gain access to their landlocked property. The circuit court denied the petition on the basis that the circumstances did not fit the typical situation from which ways of necessity were implied and that even if they had, the easement would not have survived because it was not recorded. The court of appeals affirmed. Petitioners appealed the judgment.


Were the petitioners entitled to an easement?




The Court held that the petitioners failed to establish an easement by implication because the private road they sought to extend did not and had never extended to their properties. The Court also determined that petitioners failed to establish an easement by necessity, because the United States, petitioners' grantor, never severed a landlocked portion of its property that was inaccessible from a public roadway. Instead, according to the Court, petitioners themselves conveyed away their highway access. The Court further failed to find an easement by necessity due to the cliff and rocky terrain inhibiting access to the parcel.

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